NLRB Restores Wright Line Test for Misconduct During Protected Activity
The Board held in Lion Elastomers LLC (Sept. 23, 2026) that its 2020 General Motors/Wright Line framework governs when misconduct during Section 7 activity loses NLRA protection, reviving a defense tool for employers.
In Lion Elastomers LLC, 375 NLRB No. 41 (Sept. 23, 2026), the NLRB returned to the General Motors LLC, 369 NLRB No. 127 (2020) standard for deciding whether misconduct during protected concerted activity forfeits NLRA protection. The general counsel must first prove, by a preponderance, that the employee engaged in union or protected concerted activity, the employer knew of it, and antiunion animus motivated the adverse action; only then does the burden shift to the employer to show it would have taken the same action absent the protected activity. The majority (Members Mayer and Macy, with Chairman Murphy concurring) reasoned that the Fifth Circuit's 2024 vacatur of Lion Elastomers II nullified that decision's attempt to overrule General Motors, leaving the 2020 framework as extant precedent. Member Prouty agreed General Motors controlled the remanded proceeding but disputed that the vacatur erased Lion Elastomers II elsewhere, and the Board left open whether Intertape Polymer Corp., 373 NLRB No. 68 (2024), independently displaced General Motors.
Why it matters: returning to a single burden-shifting test displaces the setting-specific Atlantic Steel, totality-of-the-circumstances, and Clear Pine Moulding standards that complicated discipline of abusive picketers, social media posts, and misconduct in management meetings, and aligns NLRA analysis with EEOC obligations. Watch the remand to the ALJ, possibly on a reopened record, and further treatment of Intertape.